Jackson v. Kan. City Kan. Pub. Sch. Unified Sch. Dist. No. 500

378 F.Supp.3d 1016

Marcia L. JACKSON, Plaintiff,

v.KANSAS CITY KANSAS PUBLIC SCHOOLS UNIFIED SCHOOL DISTRICT NO. 500, Defendant.

Case No. 18-2046-DDC-TJJ

United States District Court, D. Kansas.

Signed May 3, 2019

Marcia L. Jackson, Kansas City, KS, pro se.

Gregory P. Goheen, McAnany, Van Cleave & Phillips, PA, Kansas City, KS, for Defendant.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

Pro se¹ plaintiff Marcia L. Jackson brings two Title VII claims against defendant Kansas City, Kansas Public Schools Unified School District No. 500. One, plaintiff alleges that defendant² permitted a co-worker to sexually harass her after she reported to her supervisor that the co-worker had threatened to beat her up. Two, plaintiff alleges that defendant terminated her employment in retaliation for reporting a separate incident of sexual harassment.

Before the court are three motions. In the first one, defendant moves for summary judgment (Doc. 86). Plaintiff has responded with a Memorandum in Opposition (Doc. 92). And, defendant has filed a Reply (Doc. 105). But, to address defendant's Motion for Summary Judgment, the court first must resolve the two other pending motions.

The second motion challenges the Pretrial Order (Doc. 84). After Magistrate Judge Teresa J. James entered the Pretrial Order on October 1, 2018, plaintiff filed an Objection (Doc. 85). Defendant then made a two-part filing: the Clerk has categorized this filing as a Response to plaintiff's Objection and a separate Motion to Strike Plaintiff's Objection to the Pretrial Order (Doc. 89). Plaintiff then filed a Response to the defendant's Motion to Strike (Doc. 90). Defendant, in turn, filed a Reply (Doc. 91). And, plaintiff filed a Sur-reply (Doc. 97).

The final pending motion is plaintiff's Motion to Strike Affidavit and Exhibits (Doc. 94). In short, plaintiff challenges an affidavit—and the attached exhibits—that defendant has included with its Memorandum in Support its Motion for Summary Judgment. Defendant has filed a Memorandum in Opposition to plaintiff's Motion to Strike (Doc. 103).

For reasons explained below, defendant's Motion to Strike (Doc. 89) is granted. Plaintiff's Motion to Strike Affidavit and Exhibits (Doc. 94) is granted in part and the rest is denied. And, defendant's Motion for Summary Judgment (Doc. 86) is granted.

I. Defendant's Motion to Strike Plaintiff's Objection to Pretrial Order (Doc. 89)

Plaintiff has objected to defendant's legal defenses listed in the Pretrial Order (Doc. 84). She also argues that defense counsel did not act in good faith after the court ordered defense counsel to revise the Pretrial Order following the pretrial conference on September 20, 2018. See Doc. 80. In response, defendant contends that its Answer (Doc. 10) contains all the defenses plaintiff has objected to in the Pretrial Order.

Under Federal Rule of Civil Procedure 16(e), the court may hold a final pretrial conference to formulate a trial plan. Fed. R. Civ. P. 16(e). Once approved by the court, the pretrial order supersedes all pleadings and controls the subsequent course of the case. Wilson v. Muckala , 303 F.3d 1207, 1215 (10th Cir. 2002) ("When an issue is set forth in the pretrial order, it is not necessary to amend previously filed pleadings because the pretrial order is the controlling document for trial." (internal quotations and citations omitted)); D. Kan. Rule 16.2(b). The court may alter the final pretrial order only "to prevent manifest injustice." Fed. R. Civ. P. 16(e) ; Monfore v. Phillips , 778 F.3d 849, 851 (10th Cir. 2015) (Gorsuch, J.) (explaining this high standard "ensure[s] everyone involved has sufficient incentive to fulfill the order's dual purposes of encouraging self-editing and providing reasonably fair disclosure to the court and opposing parties alike of their real trial intentions.").

The court overrules plaintiff's objections to the Pretrial Order. Defendant included each challenged defense in its Answer, which it filed in March 2018. Doc. 10 at 3–4; Doc. 84 at 8–10. And so, plaintiff cannot argue that defendant amended its previous pleadings by including a new defense in the Pretrial Order. See Wilson , 303 F.3d at 1215 ("[W]e do not normally expect to see claims or defenses not contained in the pleadings appearing for the first time in the pretrial order[.]"). The purpose of Rule 16 is to "avoid surprise, not foment it." Id. at 1216 (citation omitted). But, here, these defenses could not have surprised plaintiff because defendant asserted them in its Answer seven months before the court entered the final Pretrial Order. The court thus overrules plaintiff's objections to the Pretrial Order.³

II. Plaintiff's Motion to Strike Defendant's Affidavit and Exhibits (Doc. 94)

Next, the court addresses plaintiff's Motion to Strike Defendant's Affidavit and Exhibits (Doc. 94).⁴ Plaintiff's motion zeroes in on the affidavit of defendant's custodian of records— Susan Westfahl—and the exhibits submitted with Ms. Westfahl's affidavit. Plaintiff's Motion to Strike advances three arguments. First, plaintiff contends that the court should strike Ms. Westfahl's affidavit because defendant failed to disclose her as a witness under Fed. R. Civ. P. 26(a). Second, plaintiff asks the court to strike the 18 exhibits attached to Ms. Westfahl's affidavit because defendant failed to produce them in a timely manner. Third, reading plaintiff's motion liberally, plaintiff moves to strike Exhibits 11–14 as inadmissible because plaintiff has failed to authenticate them. The court grants plaintiff's motion in part and denies the rest.

A. Susan Westfahl's Affidavit

First, plaintiff contends that the court should strike Susan Westfahl's affidavit because defendant failed to disclose her as a witness under Fed. R. Civ. P. 26(a) and (e). Ms. Westfahl's affidavit primarily serves to authenticate documents—specifically, defendant attaches 18 exhibits to Ms. Westfahl's affidavit. Ms. Westfahl avers that she is the Clerk of the Board of Education and that Kansas law charges her with the care and custody of the Board of Education's records, books, and documents. Ms. Westfahl's affidavit certifies each attached exhibit as a "true and accurate copy." Doc. 87-1 at 2–5. So, plaintiff contends, the court must disregard any exhibit relying on Ms. Westfahl's affidavit.

Defendant's Memorandum in Opposition (Doc. 103) concedes that it did not identify Ms. Westfahl by name in its Rule 26 disclosures. But, defendant contends, the court should excuse this omission because it is harmless and substantially justified.

Rule 26(a) requires the parties to disclose, in part, the following:

[T]he name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment[.]

Rule 26(a)(1)(A)(i). If a party fails to identify a witness in its disclosures under Rule 26(a) and (e), the court may prevent the party from using that witness to supply evidence on a motion unless the failure is substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). Several factors influence the analysis whether a Rule 26 violation is harmless or substantially justified: "(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness." Eugene S. v. Horizon Blue Cross Blue Shield of N.J. , 663 F.3d 1124, 1130 (10th Cir. 2011) (quoting Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co. , 170 F.3d 985, 993 (10th Cir. 1999) ). The party who failed to make or supplement the initial disclosure carries the burden to show the non-disclosure was harmless or justified. Umbenhower v. Copart, Inc. , 222 F.R.D. 672, 675 (D. Kan. 2004).

Resolving this dispute requires a brief retrospective of the case's timeline. Defendant made its initial disclosures on May 18, 2018. Doc. 19. In its initial disclosures, defendant listed "[a]ll witnesses needed to lay foundation for admission of exhibits." Doc. 94-1 at 4. The Scheduling Order gave the parties up to 40 days before the discovery deadline to supplement their initial disclosures. Doc. 17 at 2. The court directed the parties to complete discovery by August 24, 2018. Id. So, the Scheduling Order permitted the parties to supplement their Rule 26 disclosures until July 16, 2018. Defendant did not supplement its disclosures until December 21, 2018—more than five months after the deadline.

Defendant avers that it did not disclose Mr. Westfahl in its Rule 26 disclosures because defendant believed that the parties had agreed that authenticating affidavits would not be necessary on summary judgment. Specifically, defendant contends that the parties agreed—for summary judgment and trial—to waive foundation and authentication objections for exhibits marked or used during depositions and any document produced in discovery. Defendant asserts that it decided not to supplement its disclosure with authentication witnesses by the July 16 deadline based on this understanding.

The proceedings conducted at the Pretrial Conference support defendant's contention. The Pretrial Conference was held on September 20, 2018, several months after the supplemental disclosure deadline. Under our Local Rules, the parties must try in good faith to draft a pretrial order that the judge can sign at the pretrial conference. But, should the "parties disagree on any particulars, they are each to submit proposed language on the points in controversy, for the judge to rule on at the conference." D. Kan. Rule 16.2(a). The parties' proposed pretrial order included the exhibits—now contested—as stipulated exhibits. And, the proposed order did not disclose any dispute about the stipulated exhibit list,...